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The National Association of Attorneys General (NAAG) held its fall consumer protection conference last week in Washington, DC, where state Attorneys General (AGs) discussed enforcement priorities and strategies. The conference featured both closed-door sessions for law enforcement only, and a day of public panels and speeches. Speakers from state AG offices, consumer advocacy organizations, and the private sector discussed trends ranging from creation of new data privacy units in AG offices to new state laws regulating ultra-processed foods and undisclosed "junk" fees.
Privacy and Consumer Health Were the First Order of Business
The first public panel featured a New Hampshire assistant attorney general discussing the state's new data privacy unit, which was launched this year and initially staffed by a single attorney, paralegal, and investigator. Given those resource limitations, the unit's early focus has been educating businesses through FAQs and prioritizing efforts on violations of the state privacy law that can't be cured, such as processing sensitive data without permission. There was also discussion of the challenges in assessing whether companies meet the threshold number of in-state consumers to trigger coverage under the law.
A West Virginia assistant AG discussed the state's new laws regulating ultra-processed foods (UPFs), defined as such based on including petroleum or certain preservatives or dyes. School meal programs are now banned from serving UPFs, and a broader state ban on manufacture and sale of UPFs goes into effect in 2028. Panelists noted that UPF laws could trigger litigation about federal preemption.
AGs Discussed Priorities, Bipartisanship, and How Businesses Can Engage With AGs
A panel featuring District of Columbia AG Brian Schwalb, New Hampshire AG John Formella, and Pennsylvania AG Dave Sunday focused on top consumer protection priorities and how companies should engage with state AGs. They discussed key priorities including technology, AI, kids' online safety, and data privacy, and mentioned that the sale of data accounts for a growing share of the economy. In the AI space, AG Formella expressed interest in the difficulty of allocating responsibility between developers and deployers. The AGs discussed how bipartisan collaboration among states can reduce the appearance of – and litigation defenses asserting – political "lawfare" or partisan enforcement. Finally, in discussing how companies can engage with state AG offices, they emphasized companies should not assume state enforcers have the full picture. They acknowledged that consumer complaints only tell part of the story, and that companies should take time to explain things to state AG offices and communicate proactively.
Emerging State Junk Fees Laws Differ in Scope from FTC Rule
The last panel of the day focused on state and federal laws requiring clear pricing and fee disclosures. Speakers discussed California and Minnesota laws, as well as the FTC's new Rule on Unfair and Deceptive Fees. A representative of the California AG's office summarized the state's new "Honest Pricing Law" in blunt terms: "The price you see should be the price you pay." The California law covers most consumer goods and services for personal use, including event tickets, short-term rentals, hotels, restaurants, and food delivery, although many financial and real estate transaction regulated by federal law are exempt.
Minnesota's Price Transparency Law is similar to the California law in requiring that all mandatory fees and surcharges be included within the advertised price. The law applies broadly to any goods or services advertised to Minnesota consumers, with the exception of certain fees charged by car dealers, broadband internet and cable providers, and other businesses regulated by the Minnesota Public Utilities Commission.
Unlike these broader state laws, the FTC's Unfair and Deceptive Fees rule is limited to the short-term lodging and live event ticketing industries. All of the panelists emphasized that in addition to the specific laws regulating price disclosures, standard unfair and deceptive practices laws, such as the Federal Trade Commission Act and state analogs, also cover these practices to the extent they mislead consumers. And a panelist from the private sector noted the compliance costs associated with this emerging patchwork of state and federal laws.
Student Loans and Debt Collection Remain Priorities
Student loans and debt collection are long-standing enforcement and consumer protection issues for state AGs. Two panels addressed changes to the federal student loan system and increased debt collection litigation. The student loan panel discussed how the restart of payments after a pause during the pandemic, and changes to repayment plans and borrowing limits, have caused consumer confusion and uncertainty that may impact both higher education and the financial sector.
The debt collection litigation panel noted that credit card delinquencies are on the rise, and that these cases often lead to default judgments. One panelist detailed a concerning pattern where certain process servers filed affidavits attesting to service in states hundreds of miles apart within a short time span. This is causing some legislators to propose laws requiring proof of debt. Amid this scrutiny, companies in the debt collection industry should take steps to ensure that they have sufficient documentation of the debt and ensure process is served properly.
Key Compliance Points and Takeaways for Businesses
Two critical themes apply to all of the messaging and content of the conference. First, the patchwork of state and federal regulations on issues from data privacy to junk fees increase compliance costs and burdens. And second, the overlapping network of regulators at the state and federal levels are increasingly looking to coordinate efforts to maximize resources. In this environment, companies may find it helpful to heed the AGs' advice and communicate proactively with regulators to educate them.
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